The planned 73% increase in the water and sewer rate over the next 10 years so the City can play catch-up with repairs and replacement of crumbling infrastructure is especially in the ironic in the context of the “Choosing our Future” report which advocates strongly for sustainable development.

To see just how mis-managed infrastructure is in Ottawa, let’s examine the saga of infrastructure planning in the South March Highlands (SMH) on the west side where it meets the Carp River.

In 2010 the South March Highlands – Carp River Conservation (SMHCRC) non-profit launched a Judicial Review of the Terry Fox Drive Class Environmental Assessment (EA) with the hope the construction of the $48 Million road project subsidized by the Infrastructure Stimulus Fund (ISF) would be better mitigated considering its massive impact on the diverse and unique habitat of the South March Highlands, as well as on the Carp River floodplain.

The judicial panel decided not to examine technical evidence in which they had no expertise, and instead deferred to the Ministry of Environment’s support of the City’s decision not to issue an EA Addendum – despite significant changes to project and environmental setting that actually reversed the mitigation measures that had been reviewed with and accepted by the public in 2004.

Basically the MoE stated to the Court that the EA Process is a “proponent-driven” process and therefore an Addendum to the Class EA was not required if the proponent didn’t believe an Addendum was required – even if the project’s eventual environmental mitigation is the opposite of what was proposed during the original EA process.

However when we look at just how fiscally responsible the City of Ottawa, as proponent, was we see that $Millions from the ISF program were spent on Terry Fox Drive Extension (TFDE) would have been better directed towards fixing crumbling infrastructure.

For example, in 2010, the City spent $48 M of public funds on a road based on a 2001 population and traffic forecast that was subsequently found by the Auditor General in 2007 to be completely unfounded.

In short, there was no valid economic justification for that spending at all. Yet at no time in the planning process was Council advised of the need to revisit the economic justification of the TFDE spending.

Floodplain

Having decided to build a road that was not needed, the City continued to spend $Millions acquiring property on which to undertake floodplain compensation work – that could have been avoided in the first place by just keeping the road out of the floodplain in the first place.

When TFDE was first approved by the Region back in 2000, it only skirted the floodplain. It wasn’t until Ottawa City Council approved an Addendum to Class EA in 2004 that the road was shifted further out into the floodplain where it has been constructed with infrastructure money that would have better used to upgrade crumbling infrastructure.

If we are to believe what is written in Committee Reports, a memo by the Deputy City Manager to the Chair of the City’s Transportation Committee explained to Council was that the westerly shift was to avoid a recently constructed barn valued at $60,000. This is described in detail on page 34 of the 2007 EA Addendum.

To protect that barn, the developer of the Richardson Subdivision asked that the road be shifted into the floodplain – and agreed that he would be responsible for the extra flood mitigation costs:

Looking at the Richardson Ridge Subdivision, it appears that the developer’s request to move the road into the floodplain has resulted in about an extra 40 units being able to be built. If these lots are were sold at an average of $500 K each, the developer’s revenue would be increased by about $20 M.

Of course the $60,000 barn will be torn down anyway as it is not shown in the plan of subdivision and is likely to be inconsistent with a suburban housing development. It isn’t too difficult to imagine that planning staff could have foreseen the fate of the barn!

It is possible that the barn may have been deliberately constructed to justify a westward expansion of the developable land. Aerial photos published in the Oct 2000 Environmental Study Report for the road shows that there is no barn in the path of the road.

By 2002, aerial photos show that the barn had been built even though the landowner was apparently aware of the planned road. Appendix A of the 2000 ESR identifies that landowners, including the Richardsons, were directly notified and that they also attended the public workshops for the road.

Property Acquisition

In Ontario, the development of infrastructure in a floodplain requires “floodplain compensation” which involves creating additional flood capacity to make up for what is lost in building the infrastructure.

The 3 property acquisition reports(Broughton, Richardson, Cowick) show that, to avoid the $60 K cost of replacing that barn, the City paid $1.73 Million just to purchase the property on which it undertook the floodplain compensation on the west side of the Carp River. Do City managers need remedial training in financial cost/benefit analysis?

On top of the property acquisition costs, there were all of the costs associated with the excavation to compensate for the loss of floodplain storage from all of the fill that had to be placed to create the road embankment.

During the TFDE Judicial Review the City described the extra costs to build a proper road foundation for the road because of the poor soil in the floodplain. It is quite possible that for every dollar spent on purchasing property, there were $2 or $3 more dollars in extra construction costs – all costs that could have been avoided if the road wasn’t built in the floodplain.

According to the committee minutes cited earlier, the landowner agreed to pay the additional costs of shifting the road further into the floodplain. Since the request to shift the road came from the landowner, they should have been held accountable for 100% of the floodplain compensation costs.

Yet none were assigned because the entire TFDE project was ISF funded by taxpayers at 3 levels of government. Land acquisition costs are not eligible for that funding, but floodplain compensation costs are.

Even if the floodplain compensation costs were split 50-50 (because some of the original roadway would have impacted the flood fringe), it’s quite possible the developer’s share of costs could have been $2-2.5 Million, or more.

Instead, taxpayers subsidized more than $60,000 in costs for each additional unit of the 40 units the developer could build. It appears that taxpayers have paid 40x over for the cost of that barn while simultaneously enabling the developer to increase revenue by $20 M!

This lack of fiscal accountability in the City’s planning department is atrocious. If City management were held accountable by the Mayor for such bad business decisions we wouldn’t be in a situation today where taxes must be increased to pay for crumbling infrastructure.

Lot Creation

Sadly the saga of mismanagement continues and from looking at the City’s zoning webpage, it appears that two new parcels of land were created on the west side of the Carp River floodplain where the City acquired land to undertake the floodplain compensation (these are the parcels of land the City purchased from the Richardson property and from the Richardson-Cowick property).

How could these lots could have been allowed to be created in the floodplain in the first place? Creating lots in the floodplain is clearly inconsistent with the Provincial Policy Statement.

Despite moving the road into the floodplain at the request of the developer, there was absolutely no mention of the need to create lots in the Committee Report for the zoning bylaw for the Richardson Subdivision.

Under Section 50 (3c) it’s possible for the City to acquire property outside of a Plan of Subdivision or Consent process (processes that would at least require some transparent / public process):

“Subdivision control

(3) No person shall convey land by way of a deed or transfer, or grant, assign or exercise a power of appointment with respect to land, or mortgage or charge land, or enter into an agreement of sale and purchase of land or enter into any agreement that has the effect of granting the use of or right in land directly or by entitlement to renewal for a period of twenty-one years or more unless,

(a) the land is described in accordance with and is within a registered plan of subdivision;

(b) the grantor by deed or transfer, the person granting, assigning or exercising a power of appointment, the mortgagor or chargor, the vendor under an agreement of purchase and sale or the grantor of a use of or right in land, as the case may be, does not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment in respect of, any land abutting the land that is being conveyed or otherwise dealt with other than land that is the whole of one or more lots or blocks within one or more registered plans of subdivision;

(c) the land or any use of or right therein is being acquired or disposed of by Her Majesty in right of Canada, Her Majesty in right of Ontario or by any municipality; “

However before the City can go ahead and create lots in the floodplain (in this case, without a public consultation process), it’s decision has to be in compliance with Section 3.(5) of the Planning Act, which states:

“Policy statements and provincial plans

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Municipal Board, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision;”

“Section 3.1.2 of the PPS:

3.1.2 Development and site alteration shall not be permitted within:

d) a floodway regardless of whether the area of inundation contains high points of land not subject to flooding.”

Definition of floodway in Provincial Policy Statement:

“for river, stream and small inland lake systems, means the portion of the flood plain where development and site alteration would cause a danger to public health and safety or property damage. Where the one zone concept is applied, the floodway is the entire contiguous flood plain.”

Definition of Development in Provincial Policy Statement:

“Development: means the creation of a new lot, a change in land use, or the construction of buildings and structures, requiring approval under the Planning Act, but does not include:

According to the property acquisition reports for the Richardson and Richardson-Cowick properties, the City’s Director of Real Estate claims that Public Consultation was completed during the TFDE Class EA process.

Yet there is no basis on which such a claim can be made – as an example, have a look at the City’s study area map for the TFDE Class EA. The location where the lots were created are on the west side of the Carp River that are clearly outside the primary and secondary study areas of the Class E process.

Furthermore, in our Judicial Review, SMHCRC combed through ALL TFDE Class EA materials and nowhere is there any mention of the need to create those lots – let alone public consultation on them.

This appears to be a serious breach of both municipal process and ethics.

The Planning Act is prescriptive about notification requirements – mail outs to landowners within prescribed distances of applications, posting signs and advertisements about process etc.

The City appears to have created lots in the floodplain without any required process under the Planning Act, with what appears to be a contravention of Section 3 of the Planning Act – seemingly so that taxpayers would effectively subsidize a $60,000 /unit cost to create the 40 units on the Richardson Ridge Subdivision?

Furthermore, it appears that Council was repeatedly misled by staff on the lack of both process, spending impact, and lack of public consultation.

It was only recently that the City advertised a Zoning Bylaw Amendment to change the floodplain overlay on the Richardson Ridge Subdivision and the TFDE floodplain compensation lands – as part of the rezoning associated with the Carp River Restoration Plan:

During the TFDE Judicial Review, the City successfully argued that it did not need to coordinate the floodplain impact assessment of the TFDE with resolution of the Minister’s Order about the Carp River Restoration Plan – yet when the City finally gets around to completing a transparent Planning Act process related to the floodplain compensation – the City decides to lump it in with the Carp River Restoration Plan – as required by the Minister’s Order.

How can both statements be true?

There is no evidence that a Planning Report was ever prepared by a qualified land use planner in support of the lot creation in the floodplain on the Richardson, and Richardson-Cowick property. Nor was the proper public consultation process followed in accordance with the Planning Act.

In a recent public statement, the Chair of the Planning Committee publicly appealed to developers to be more professional when dealing with the City on Planning Matters. Why shouldn’t we also expect the planning department act professionally by making sound business decisions, following proscribed municipal process, transparently present cost impacts, and report truthfully to Council and the public at all times?

Why should members of the public believe the contents of Committee Reports, in particular when a memo is written by a Deputy City Manager to the Chair of a Committee in which it is stated that a developer has agreed to certain costs – but there is no disclosure that actually the developer is the beneficiary of $Millions in subsidy and incremental revenues?

Is this the transparent and open government that the citizens of Ottawa deserve?

On Dec 14, 2010 the Ontario Divisional Court gave judgement in a judicial review of the Terry Fox Drive Extension environmental assessment process. This decision, for which leave to appeal may be sought, appears to be precedent-setting and has significant implications in Ontario.

1. Despite the City’s attempt to challenge the standing of the South March Highlands – Carp River Conservation Inc.(SMHCRC), the court ruled that the SMHCRC:

(a) has a genuine interest in the matter;

(b) that there is a serious issue to be tried; and

(c) there is no other reasonable and effective manner for the issue to be resolved.

This appears to be an important precedent that will assist other public interest groups assure their standing before the courts.

2. Despite the City’s assertion that the Minister of the Environment as well as the City of Ottawa should have been a party to the case, the court ruled that the City on its own exercised a statutory power of decision that was subject to judicial review.

This aspect of the decision appears to indicate that municipalities will be held accountable for the effect of their own decisions, notwithstanding the involvement of other authorities.

3. Despite the City’s assertion to the contrary, the City’s decision to proceed with construction of the road is a statutory power of decision and thus subject to review. Furthermore, the City’s decision to proceed without filing an Addendum that was available for public review has broad public interest implications because of the lack of opportunity for public review.

This appears to indicate that municipalities who decide to proceed with projects without filing an Addendum that was available for public review are subject to judicial review by the courts.

4. Despite the City’s assertion that the situation was moot because the road was near completion, the court agreed that it is not too late to address items such as whether the environmental mitigation is appropriate.

This means that it is not too late to do the right thing.

5. With regard to whether the City of Ottawa was required to file an Environmental Assessment (EA) Addendum the court determined that it could not conclude that the City’s decision to proceed without filing an Addendum was unreasonable.

This aspect of the decision appears to raise a number of questions which require careful consideration by members of a broad community of interest.

In summary the SMHCRC successfully defended itself on several legal challenges made by the City of Ottawa on questions of legal standing, applicability, mootness, and the extent to which the City was subject to judicial review.

The SMHCRC now has 15 days to consider whether it should request leave to appeal on the remaining aspects of the decision.